Media Mentions

In the coming days and weeks, reporters and legal analysts will comprehensively analyze Robert S. Muller III’s report laying out in excruciating detail Russia’s attempt to interfere with our election, President Trump’s team’s willingness to benefit from such interference and even obtain Hillary Clinton’s purloined emails, and Trump’s systematic, continual efforts to thwart the investigation.  ...Constitutional scholar Laurence Tribe tells me, “Volume II provides a perfect roadmap for impeaching this president for obstruction of justice if the House opts to pursue that path.” He continues, “Although Attorney General Barr did his darnedest to get in the way, and may have succeeded in creating a narrative that will protect the president, he had no way to erase or scrub that roadmap into oblivion.” Tribe points out that “it’s not just that the Mueller Report on p. 8 of the second volume says the Special Counsel’s Office is ‘unable to reach [the] judgment’ that ‘the President clearly did not commit [the crime of] obstruction of justice’ but that the Report elaborates numerous shocking instances of what any objective observer would have to describe as such obstruction.”

Special Counsel Robert Mueller’s final report, as redacted by the Department of Justice, is now released. Here are some early reactions from legal and intelligence experts. For additional background, see our “Hot Topics” archive on the Russia investigation. ... Alex Whiting (@alexgwhiting), Professor at Harvard Law School and member of the board of editors of Just Security. He served as a former federal prosecutor at the Department of Justice and the U.S. Attorney’s Office in Boston, also hones in on obstruction, including several ways in which Mueller’s report is more damaging to the President than Barr’s summary implied: Four things jump out from an initial read of the obstruction section of the Mueller report. First, Mueller declined to make a call on whether the President committed criminal acts of obstruction solely because of the Justice Department’s current policy that a sitting President cannot be indicted, not because he concluded that such charges could not be supported legally or factually. In fact, he says that they would have stated if they found that he “clearly did not commit obstruction of justice.”

An op-ed by Cass Sunstein: In coming to terms with Special Counsel Robert Mueller’s report, we should adopt a principle of neutrality and put entirely to one side our enthusiasm, or our lack of enthusiasm, for President Donald Trump. It is also essential to emphasize that the report, running to two volumes and some 448 pages, will take some time to absorb. Even so, the most puzzling thing about it is unquestionably a single sentence, repeated several times: “while this report does not conclude that the President committed a crime, neither does it exonerate him.” That is a singularly opaque sentence. What on earth does it mean? That’s a genuine mystery.

Nearly a month after special counsel Robert Mueller handed in his report to U.S. Attorney General William Barr on the 22-month investigation into Russia’s interference in the 2016 presidential election, the public finally got its first look at the document Thursday. ...To start to make sense of it all, hours after the report was released, the Gazette spoke with former prosecutor Alex Whiting, a professor of practice at Harvard Law School who teaches issues and procedures related to domestic and international criminal prosecutions. He serves on the board of editors and writes regularly for Just Security, a popular U.S. national security law and policy website. From 2010 to 2013, Whiting supervised prosecutions in the Office of the Prosecutor at the International Criminal Court in the Hague.

The redacted version of the Mueller Report is out, and we've spent all day reading through the 448 pages. We discuss the report and what we've absorbed of it thus far, and try to make sense of what it all means.Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer at Harvard Law School and WBUR legal analyst. She tweets @ngertner; Donald Stern, former U.S. attorney for Massachusetts from 1993 to 2001, and managing director of corporate monitoring and consulting services at Affiliated Monitors.; David Gergen, adviser to four U.S. Presidents — Nixon, Ford, Reagan and Clinton — and co-director of the Center for Public Leadership at Harvard University's Kennedy School of Government. He tweets @David_Gergen. and Joe Battenfeld, Political columnist at the Boston Herald and host of "Battenfeld" on Boston Herald Radio. He tweets @joebattenfeld.

For 21 minutes on Thursday morning, with the nation watching, President Trump had the loyal attorney general he had always longed for. ... Mr. Barr’s untrammeled view of executive power goes back to the Bush administration, when he counseled Mr. Bush that he had the right to start a major war in the Persian Gulf without the authorization of Congress. Mr. Bush, more cautious than his deputy attorney general at the time, asked Congress for a vote to support the war. “Bill Barr is arguably going back to his worst instincts,” said Laurence H. Tribe, a professor at Harvard Law School and an outspoken critic of Mr. Trump. “He is bending over backward to serve as an advocate for the president and the presidency.”

An op-ed by Noah Feldman: In the latest setback to the Guantanamo military commissions, the U.S. Court of Appeals for the D.C. Circuit on Tuesday threw out some three years of pretrial rulings by the military judge presiding over the case of the alleged mastermind of the USS Cole bombing. The decision was based on an inexcusable procedural problem: The military judge was pursuing a job in the executive branch while sitting on a case involving charges brought by the executive branch. The appeals court opinion featured a stinging attack on “all elements of the military commission system” for failing “to live up to” the “shared responsibility” of ensuring criminal justice. The ruling highlights an important evolution in the challenges facing the military commissions, which were set up to bring to justice the U.S. detainees at the prison at Guantanamo Bay, Cuba.

The 2019 proxy season is well underway, and it will be a memorable one for many reasons. Initially, the government shutdown stalled the staff’s review process by closing the Division of Corporation Finance for most of January, thereby putting some issuers at risk of acting on proxy matters without definitive guidance. Issuers must also deal with a new staff legal bulletin that adds complexity, requiring board input on two common exclusionary bases. ... Roundtable participants from both the issuer and investment communities agreed that the proxy system faces several structural problems. As Professor John Coates of Harvard Law School said at the roundtable, “there’s room for improvement; no one, I think, has ever said publicly that they would create the system that we have today if they were doing it from scratch.”

The Mueller will be released Thursday morning. We lay out what's at stake politically and legally. McKay Coppins, staff writer for The Atlantic. Author of "The Wilderness: Deep Inside the Republican Party's Combative, Contentious, Chaotic Quest to Take Back the White House." (@mckaycoppins) Nancy Gertner, retired Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst. (@ngertner) Mark Updegrove, author, presidential historian for ABC News. President and CEO of the Lyndon Baines Johnson Foundation. Director of the LBJ Presidential Library from 2009 to 2017.

When Jamaican children catch a cold, mothers rub cannabis oil on their chests. Rastafarians smoke cannabis as a religious custom. Some believe that it grew on King Solomon’s tomb. Encouraged by the tropical climate, cannabis grows in many household gardens. ... But it dare not appear too friendly. Jamaican banks that do business with cannabis companies risk having their accounts at American banks shut down. If that happened on a large scale, Jamaica could be cut off from access to American dollars, which would devastate the economy. Jamaica received $2.3bn in remittances in 2017, more than its income from exports of goods. Jamaican officials also risk losing their access to American visas if the country is found to be flouting the United States’ drug laws, says Charles Nesson of Harvard Law School.

Would you eat a six-month-old yoghurt? This is a question you may have asked if you read the recent story about a US grocer and his year-long experiment eating expired food. ...Clearly, this lack of clarity has implications for both the health of the environment and the health of the nation. What you don’t eat, you’ll end up binning, even if you could have safely eaten it; and what you don’t know not to eat could make you sick. A joint report from the Natural Resources Defense Council and Harvard Law School in 2013 said that 40% of American food goes uneaten each year, and the disorienting effect of the US date labelling system is in large part to blame. At the same time, said the report, that system fails to convey important food safety information, “despite the appearance of doing so”.

... A week earlier, the Boy Scouts of America—the national organization that oversees various outdoors programs for about 2 million children, including Cub Scouts, Boy Scouts, and Venturing—had changed the name of its original, 109-year-old program to Scouts BSA. That made Amalie one of its first girl scouts. Not to be confused, of course, with the Girl Scouts—though Amalie said she’s one of those, too. ...And since 1938, when the U.S. Supreme Court told Nabisco and Kellogg Co. that they could both call their cereals “shredded wheat,” U.S. courts have been fairly consistent in allowing competing businesses to share a generic term. And yet, the term Girl Scouts is trademarked. “It’s a complex case,” says Rebecca Tushnet, a Harvard Law School professor who specializes in trademark law. “My prediction is that they’ll probably be able to change to ‘Scouts,’ but the issue will be over whether they have taken reasonable measures to avoid confusion.”

Since November, Lawfare Contributor Michelle Melton ’19 has run a series on our website about Climate Change and National Security, examining the implication of the threat as well as U.S. and international responses to climate change. Melton is a student a Harvard Law school. Prior to that she was an associate fellow in the Energy and National Security Program at the Center for Strategic and International Studies, where she focused on climate policy. She and Benjamin Wittes sat down last week to discuss the series. They talked about why we should think about climate change as a national security threat, the challenges of viewing climate change through this paradigm, the long-standing relationship between climate change and the U.S. national security apparatus, and how climate change may affect global migration.

Sometimes it seems as if the deepest divide in American politics is not so much between Republicans and Democrats as between voters who watch Fox News, and those who don’t.  ...What do the courses run by these stories say about the structure of American media today? What they illustrate is that there is not one media ecosystem, but two separate spheres that respond to different incentives and operate in very different manners, says Yochai Benkler, a professor at Harvard Law School and co-author of “Network Propaganda: Manipulation, Disinformation, and Radicalization of American Politics.” One of these spheres is comprised of right-leaning media, from Fox News to Breitbart and talk radio hosts such as Mr. Limbaugh. The other is a center-left composite of everything else, from the legacy newscasts of the old broadcast networks to most daily newspapers and new liberal internet sites. To find out how news moves through these spheres, Professor Benkler and his co-authors used data analysis tools to study hyperlink connections, Facebook shares, and other marking aspects of some 4 million stories from the 2016 U.S. presidential election and the first year of the Trump presidency. Their study showed that right-leaning audiences concentrated to a large extent on right-leaning outlets insulated from the rest of the media. Center and left-leaning audiences spread their attention more broadly and focused in particular on what is often labeled the MSM.

An op-ed by Noah Feldman: A group of parents filed suit Monday against the New York City Department of Health to block an emergency order requiring measles vaccinations for everyone in four ZIP codes in the Williamsburg neighborhood of Brooklyn. The threat of measles — and the opposition to vaccination — isn’t coming from the hipsters who populate some parts of the neighborhood. The target is a community of mostly Hasidic, haredi (ultra-Orthodox) Jews, who have refused vaccination for quasi-religious reasons and who are now caught in the middle of a measles outbreak that city health officials fear could spread fast and dangerously. One yeshiva’s preschool program has already been closed as a health hazard. Forced vaccination is a classic instance of a situation where the courts have to balance individual liberties against the public interest. The U.S. Supreme Court’s jurisprudence on the topic goes all the way back to 1904. Under existing law, there is strong reason to think the city will win and will be able to fine refusers $1,000 in an effort to compel vaccination.

The Supreme Court yesterday rejected challenges that aimed to dismantle nuclear subsidies in Illinois and New York. By declining a pair of challenges filed by the Electric Power Supply Association (EPSA), the justices preserved two appellate court rulings upholding the states' zero-emission credit (ZEC) policies. Other states with an interest in developing their own incentive programs now have a legally tested blueprint for doing so, legal experts said yesterday. "EPSA asked the Court to expand preemption under the Federal Power Act, a move that might have threatened state renewable energy programs and could have jumpstarted a wave of litigation," Ari Peskoe, director of Harvard Law School's Electricity Law Initiative, wrote after the Supreme Court's order denying review. "Today's denials underscore that states have broad legal authority to enact programs that pay clean energy generators for their production of zero-emission energy."

An op-ed by Cass Sunstein: Has Yale Law School violated the U.S. Constitution? Has it offended the First Amendment? To respond to those questions, you don’t even need to know what Yale is accused of doing. The answers are No and No. Yet, in a highly publicized letter to Dean Heather Gerken, Republican Senator Ted Cruz of Texas accused the law school of adopting a new policy that discriminates against Christian organizations on the basis of religion – and is therefore unconstitutional. Cruz means business. He announced that the Senate Judiciary Committee’s subcommittee on the Constitution, which he chairs, is initiating a formal investigation, and warned that as a result of the inquiry, the case might be referred to the Justice Department. He directed Gerken to preserve and maintain all relevant records, with a view toward the investigation and future litigation.

President Donald Trump's attorneys have reportedly warned an accounting firm not to consent to a subpoena directing it to turn over the president's financial information to the House Oversight Committee. ..."It appears that Donald Trump made a practice of wildly exaggerating his wealth and the supposed business acumen that enabled him to amass it," Laurence H. Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard, told Salon last month. He added, "Although there are no legal and especially criminal consequences to that kind of exaggeration on reality television or in talking to journalists at places like Forbes in order to cheat one’s way onto various lists of the wealthiest people around, there are very serious criminal consequences indeed when such lies, in the form of fraudulent financial statements, are used either to extract loans from banks or to obtain insurance on favorable terms from various insurance companies."

South Bend, Indiana, Mayor Pete Buttigieg officially launched his 2020 presidential campaign on Sunday and immediately drew comparisons to a young Barack Obama. “The announcement of Pete Buttigieg was the most inspiring I’ve seen since Barack Obama’s,” wrote Laurence Tribe, a Harvard Law professor and judicial adviser to Barack Obama's 2008 presidential campaign. “His is a campaign not just for an office but for an era.”

Last week, a Greek woman with a history of multiple in-vitro fertilization failures gave birth to a healthy baby with DNA from three biological parents. It was the first successful birth in a clinical trial of a controversial fertility treatment known as mitochondrial replacement therapy, which combines genetic material from the intended mother and father plus a female donor. In the U.S., the procedure is effectively banned because of a congressional amendment passed in 2015 that’s been renewed every year since. But now, a group of scientists, patient advocates, and bioethicists want to see the prohibition lifted. The technique, they say, could help certain women who are carriers of serious genetic diseases have healthy, biologically related children. In the first of a series of meetings meant to draft policy recommendations to Congress, stakeholders will meet Wednesday at Harvard Law School to discuss how to move forward in the U.S. I. Glenn Cohen, one of the organizers of the event and faculty director of the school’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, said a public discussion is needed in the wake of revelations late last year that a scientist in China used the gene editing tool CRISPR to modify twin girls as embryos.

An article by Sejal Singh ’20: ...As of 2017, more than 60 million American workers have signed forced-arbitration agreements in their employment contracts, and 81 of the largest 100 US companies have forced-arbitration clauses in contracts with their customers for financial products, cell phones, and more. The game was always rigged against working people—now, they might not get to play at all. That’s why we launched the Pipeline Parity Project, a grassroots campaign of law students fighting to end forced arbitration, stop workplace discrimination, and unrig the legal system. ...When we started Pipeline Parity Project last spring, we were just a small group of Harvard Law School students furious about a rigged justice system. Just one year later, organized students have secured unprecedented disclosure of forced arbitration in the legal profession and forced some of the country’s largest firms to drop arbitration agreements. Now, we’re building a national network of law students who are trying to rewrite the rules that protect the powerful at the expense of the little guy.